Jim Crow in New York

It is widely known and well documented that Americans used the law to keep African-American voters out of the electoral process throughout the Deep South. In the late 1800s, Jim Crow laws spread as part of a backlash against the Reconstruction Amendments – the Thirteenth, Fourteenth, and Fifteenth Amendments of the U.S. Constitution – which ended slavery, granted equal citizenship to freed slaves, and prohibited racial discrimination in voting. The uproar worked its intended purpose: large segments of the African-American population were effectively removed from the democratic process for sustained periods, in some cases for life.

Less known is that criminal disenfranchisement laws were part of the effort to maintain white control over access to the polls. Between 1865 and 1900, a period when African-American men were, theoretically, granted greater voting rights state-by-state, and ultimately enfranchised by the Fifteenth Amendment, 19 states passed criminal disenfranchisement laws. By 1900, 38 states deployed some type of criminal voting restriction. These laws disenfranchised convicted individuals long after their release from prison; many dictated that individuals released from prison could not vote unless they had been pardoned by the governor.

States also adapted their criminal codes to punish those offenses with which they believed freedmen were likely to be charged, including bigamy, vagrancy, petty theft and burglary. Together, targeted criminalization and felony disenfranchisement stripped African Americans of their voting rights – and suppressed African American’s political power for decades. The discriminatory impact of these laws and practices continues to this day. Nationwide, 8% of the African-American population, or 2,000,000 African Americans, are disenfranchised. Given current rates of incarceration, approximately one in three of the next generation of black men will be disenfranchised at some point during their lifetime.

But Jim Crow was not confined to the South. He made his home in northern states as well, perhaps most notably in New York. Starting in the 18th century, the history of New York’s election laws follows this national narrative. In fact, New York was the only state in the country to require blacks – and only blacks – to own real property in order to qualify to vote.

New York’s criminal disenfranchisement provisions, like those deployed in the South, were part of a concerted effort to exclude African Americans from participating in the political process. As African Americans gained freedom with the gradual end of slavery, New York’s voting qualifications – including criminal disenfranchisement laws – became increasingly more restrictive. A careful reading of New York’s constitutional history reveals that at the very time that the Fourteenth and Fifteenth Amendments forced the state to remove its nefarious property requirements for African-American voters, New York changed its law from allowing to requiring the disenfranchisement of those convicted of “infamous crimes.”

Today, New York’s criminal disenfranchisement law is nearly identical to the provision enacted 140 years ago. And the law continues to have its originally intended effect: the widespread disenfranchisement of African Americans and other ethnic minorities. More than 108,000 New Yorkers cannot vote because of a conviction in their past. Almost half of these disenfranchised citizens have completed their prison sentence and are living and working in the community. Nearly 80% of those who have lost their right to vote under New York’s law are African-American or Hispanic.

Recommendations

1. New York should restore voting rights to people on parole. An important step towards full departure from our racist history is to restore voting rights to the thousands of New Yorkers who are living in the community. Moreover, the complicated eligibility standards established by the current Election Law result in the illegal de facto disfranchisement of New Yorkers who are eligible to vote. The system should be simplified by amending the law to restore voting rights automatically to all New York citizens as soon as they are released from prison.

2. The New York Legislature should enact notice and public education requirements. To help rectify and eliminate some of the existing confusion among the county boards of elections and the general public, the Legislature should require the Department of Corrections, probation, parole and supervised release offices to notify people of their right to vote and to provide voter registration forms. The legislature should also require county election officials and criminal justice agencies to receive regular training on the voting rights restoration law and voter registration procedures.

3. The State Board of Elections should initiate a public communications campaign to educate New Yorkers about voter registration for people with felony convictions. In addition to the notifi cation of individuals who have been directly affected, the State Board of Elections should initiate a state-wide public communications campaign to clarify this issue for the New York population as a whole. Through public service announcements in print media, television, and radio outlets, as well as posting information on its website and those maintained by local boards, the State Board must make clear that people with criminal histories are eligible to vote in New York.

4. The State Board of Elections should launch a statewide campaign to educate and register voters in minority communities. There is widespread confusion and distrust among minority communities in the state regarding voter registration and going to the polls. The State Board of Elections should launch a statewide campaign to encourage voter registration and participation in communities of color.

Media around Jim Crow in New York

About the Right to Vote Project

The Right to Vote Project leads a nationwide campaign to restore voting rights to people with criminal convictions. Brennan Center staff counsels policymakers and advocates, provides legal and constitutional analysis, drafts legislation and regulations, engages in litigation challenging disenfranchising laws, surveys the implementation of existing laws, and promotes the restoration of voting rights through public outreach and education.

About the Authors

Charles J. Ogletree, Jr. is the Harvard Law School Jesse Climenko Professor of Law and Director of the Criminal Justice Institute. In addition, Professor Ogletree serves Harvard Law School as the Executive Director of the Charles Hamilton Houston Institute for Race and Justice as well as Director of the Trial Advocacy Workshop and Saturday School Program. Professor Ogletree is a prominent legal theorist who has made an international reputation by taking a hard look at complex issues of law and by working to secure the rights guaranteed by the Constitution for everyone equally under the law. Professor Ogletree earned an M.A. and B.A. (with distinction) in Political Science from Stanford University, where he was Phi Beta Kappa. He also holds a J.D. from Harvard Law School where he served as Special Projects Editor of the Harvard Civil Rights - Civil Liberties Law Review. Professor Ogletree is the author of All Deliberate Speed: Refl ections on the First Half-Century of Brown v. Board of Education, co-author of the award-winning book, Beyond the Rodney King Story: An Investigation of Police Conduct in Minority Communities, and he frequently contributes to the Harvard Law Review, among other publications.

Erika Wood is the Deputy Director of the Democracy Program at the Brennan Center for Justice where she directs the Right to Vote project and works on redistricting reform. Ms. Wood has designed and launched major reform campaigns around the country and provides legal counsel and strategic guidance to advocates, legislators and policymakers nationwide. She has authored several groundbreaking reports, numerous articles and is a frequent speaker and commentator on voting rights, criminal justice reform and racial justice issues. In 2009 Ms. Wood was awarded the Eric. R. Neisser Public Interest Award by Rutgers Law School in recognition of her efforts to carry forward the Law School’s mission of providing liberty and justice for all. Ms. Wood is an Adjunct Professor at NYU School of Law where she teaches the Brennan Center Public Policy Advocacy Clinic.

Liz Budnitz was the 2008-2009 Right to Vote Fellow with the Democracy Program and she currently works for the Appeals Chamber at the International Criminal Court in The Hague. Prior to joining the Brennan Center, Ms. Budnitz clerked for the Honorable Joan M. Azrack, Magistrate Judge in the Eastern District of New York. She graduated cum laude from Brooklyn Law School in 2006, where she was an Edward V. Sparer fellow.

Garima Malhotra is a Research Associate with the Democracy Program where she works primarily on efforts to restore voting rights to people with criminal convictions. Ms. Malhotra graduated from Cornell University in 2008, where she majored in American Government, with minors in Inequality and Law & Society. Previously, she worked at Project Vote where she focused on increasing voter registration among low income and minority citizens. Ms. Malhotra has also spent a summer working for AmeriCorps’ Breakthrough Collaborative program in Philadelphia’s public school district.